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Must a parent equally divide their estate between all of their children in their Will? MacLean Law’s BC Disinherited Will Lawyers explain the answer may be no if the person making the Will has valid and rational reasons to do so. However, the more the Will departs from an equal sharing of an estate between children of the deceased the greater the chance a Wills Variation claim under WESA might succeed. Contact our MacLean Estate Litigation lawyers immediately if you are left out of a loved one’s Will as strict deadlines apply. Call us toll-free across BC in Vancouver, Surrey, Kelowna, Fort St John and Richmond and in Calgary by calling 1-877-602-9900.

Our BC Disinherited Will Lawyers warn the area is somewhat confused at law but cases like Hall v Hall Estate 2011 BCCA 354 indicate a trend towards upholding the disinheriting of a child if the deceased Will maker’s reasons for doing so are found to be factually accurate and logical.

In Holvenstot v. Holvenstot Estate 2012 BCSC 923, the Court concluded that a parent may make a list of reasons for disinheriting a child and the onus is on the child to prove the stated reasons are false or irrational. The Holvenstot Estate case stands for the proposition that although a judge concludes that a large number of the stated reasons by the deceased testator are false, the court can still conclude that the remaining valid and rational reasons may justify disinheritance or a greatly reduced share of an estate going to a child.

BC Disinherited Will Lawyers

In the 2015 case of Hong v Hong the Court addressed the tension over the analysis of how valid reasons for disinheriting impacts whether a Court can vary a Will on basis of inadequate provision for left out beneficiaries moral and legal grounds.

[77]         The plaintiffs say limiting the analysis to that evidence is consistent with the directive that there cannot be “an open-ended roving inquiry of the circumstantial evidence to ascertain where a testator’s estate plan has a valid and rational basis”: Hancock, citing Wilson v. Lougheed 2010 BCSC 1858, para 397. In my view, reviewing the facts surrounding prior events between Matthew and Mr. Kong is not the kind of “roving enquiry” that Justice Ballance warned against in Wilson. In that case, Justice Ballance found the reasons for the testator declining a deathbed variation were not reliably ascertainable.

[78]         That is not the situation before me. The plaintiffs do not dispute that Mr. Kong felt betrayed and hurt by events surrounding the Gilley House and the 2009 Litigation. They challenge the duration and reasonability of those feelings. Nor do they challenge the accuracy, as opposed to the reasonability, of any statements Mr. Kong made at various times about his feelings towards Matthew.

BC Disinherited Will Lawyers Say One Appeal Case Says Valid Reasons Rule

[79]         Another concern I have with the plaintiffs’ position is that by implication, it may raise the dilemma identified by Justice Dardi in Hancock. She referred to Justice Ballance’s observation (in McBride v. Voth, 2010 BCSC 443) that “it is difficult to reconcile the analytical framework endorsed in Bell and Kelly with the fundamental principles of Tataryn, that a testator’s moral duty must be assessed objectively from a standpoint of what a judicious parent would do in the circumstances, by reference to contemporary community standards”: (Hancock, para 53). In Bell the Court of Appeal stated that if the court finds the testator’s reasons to explain disinheritance are “valid and rational” the testator’s moral duty is negated and the plaintiff then has the burden to prove those reasons were false or unwarranted (discussed at para. 52 Hancock).

But BC Disinherited Will Lawyers Warn Another Appeal Case Says Not So Fast

[80]         However, Justice Dardi notes that the Court of Appeal in Scott-Polson v. Lupkoski, 2013 BCCA 428 left for another day the question as to whether a finding that a testator’s reasons for disinheritance are valid and rational also means they are determinative of what a fair and judicious parent would do (Hancock para 55).

[81]         The implication of the plaintiffs’ position in this case would be to limit the court’s analysis to the testator’s expressed, and therefore subjective reasons, rather than making an objective inquiry into the reasons for disinheriting grown children with reference, as necessary, to community standards. In my view the plaintiffs’ approach amounts to excluding important evidence about the testator’s relationship with his grown children. That approach would be a step further away from the issue the Court of Appeal identified may need further analysis in Scott-Polson. In my view, the plaintiffs’ approach is also inconsistent with Tataryn.

[82]         I also note that there is nothing in s. 5 of the Wills Variation Act to support the plaintiffs’ assertion that a court is limited to consider what was “expressly stated” by the testator. Instead, a court looks to evidence the court “considers proper of the testator’s reasons, so far as ascertainable”. The plaintiffs’ position casts the net too narrowly. Therefore, I do not accept the plaintiffs’ position that only Mr. Kong’s statements to Mr. Lew should be examined in determining his moral obligation to his grown children. Instead, it is appropriate to consider other factors.

Recent Case Largely Respects Valid and Rational Wishes Of Deceased Will Maker

In the end given the children were adults and have been involved with a dispute with the deceased. Two of the children got nothing on their variation claim and the other two got only 5 percent as the judge gave deference to the valid wishes of the deceased.

[102]     As discussed above, I find Mr. Kong fully discharged his moral duties to Matthew and Jack and therefore no variation in the will is justified on their behalf. However, I have found that Mr. Kong did not have sufficiently valid and logical reasons to disinherit Tak and Tak-Shing. I find both brothers simply followed Matthew and Jack’s actions in the 2009 Litigation but did not fully understand the implications of that litigation. Neither Tak nor Tak-Shing was comfortable in English. I also find that Mr. Kong was not estranged from Tak to the same degree as from Matthew. Given the financial circumstances of both Tak and Tak-Shing and Tak-Shing’s disability, an adjustment to the will is justified.  I also make note that as discussed later in these reasons, the estate is large enough to accommodate making provision to Tak and Tak-Shing.

[103]     To determine what is necessary to provide adequate, just and equitable provision to Tak and Tak-Shing, I am mindful of Mr. Kong’s clear intent to leave “everything” to Jackson and therefore despite the existing moral duty, the variation ought to be minor. In light of all the circumstances, I find that Tak and Tak-Shing are each entitled to a 5% share of Mr. Kong’s estate.

Our skilled BC Disinherited Will Lawyers can help you sort through the somewhat confusing rules when a deceased testator disinherits a loved one of their immediate family.